More than 131 million adults in the U.S use prescription drugs; there are many cases of misprescription every year. Here is why you can sue a doctor for prescribing the wrong medication in California.
California Medical Malpractice Law
If a doctor prescribes an individual with the wrong medication, the patient may be considered a victim of medical malpractice. However, a doctor is only liable if they are responsible for the error. If the error was a result of the manufacturer or pharmacist, a medical malpractice lawsuit cannot be brought against the doctor.
The statute of limitations for medical malpractice is one year after the plaintiff discovers the injury/negligence, or three years after the date of injury/negligence under California Civil Code 340.5.
Related: How to Sue a Doctor for Pain and Suffering
Proving Medical Negligence
Proving liability in a misprescription case will require the plaintiff to prove that the doctor was directly responsible for prescribing the wrong medication. The plaintiff must establish that:
- There was a medical standard of care (providing the patient with the proper prescription)
- The doctor/defendant deviated from that standard of care (providing patient with the incorrect prescription)
- The plaintiff/victim was harmed as a result of that deviation (the incorrect prescription caused injury or the victim to not receive their proper medication)
In order to properly prove medical negligence, an expert witness will be required. Furthermore, an injury must have resulted from the improper prescription. Either the misprescription made medical problems worse due to the lack of proper treatment or resulted in new medical problems.
Examples of medical malpractice with misprescription:
- The doctor prescribes the wrong medication
- The doctor prescribes the wrong dosage
- The doctor provides incorrect instructions for taking the medication
- The doctor prescribes a medication that has a dangerous interaction with another prescribed drug that the patient is currently taking
- The prescribed medication includes an ingredient the patient is allergic to
- The doctor prescribes the medication for an improper amount of time
- The patient’s underlying medical conditions make the prescribed drug dangerous to them
- The prescribed medication is ineffective
- The doctor fails to inform the patient of the side effects
Related: How to Sue a Hospital in California
What is the Medical Injury Compensation Reform Act?
The Medical Injury Compensation Reform Act created a $250,000 cap on non-economic damages in medical malpractice lawsuits. Non-economic damages include losses such as pain and suffering, physical impairment, loss of enjoyment of life, and/or loss of consortium.
Can I file a lawsuit if the statute of limitations has passed?
If the statute of limitations has passed, you are unable to file a lawsuit.
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